By Amy Davidson Sorkin
Can President Trump tweet a declaration of war? The words he posted on Wednesday morning suggest that he might think so. “Russia vows to shoot down any and all missiles fired at Syria,” he tweeted. “Get ready Russia, because they will be coming, nice and new and ‘smart!’ You shouldn’t be partners with a Gas Killing Animal who kills his people and enjoys it!” By “Gas Killing Animal,” Trump meant President Bashar al-Assad, whose government appears to be behind a chemical attack over the weekend that killed dozens of people in the town of Douma, many of them children. Trump has also called him Animal Assad. His regime’s brutality is, indeed, hard to express. And Russia has kept Assad in power.
From another perspective, though, the President can’t declare war on Twitter, because the President can’t, under our constitutional system, declare war. That is Congress’s job—or it should be. There are still many ways that a President can start a war, or expand one. (Trump can even, without too many obstacles, initiate a nuclear conflagration.) In recent decades, many of the rationales for this effective power have involved a broad reading of the President’s role as Commander-in-Chief, under Article II of the Constitution. But even then, pursuant to the War Powers Act of 1973, the President is supposed to get Congress involved, both by informing it of the action and, once direct hostilities are under way, starting a sixty-day countdown, at the end of which Congress must act. If it does not, the President has to withdraw American forces. For the past sixteen years, however, justifications for the President’s prerogative to unilaterally deploy the American military in places as diverse as Afghanistan and Niger—and Syria—have been based on an extremely broad reading of a congressional resolution, the Authorization for Use of Military Force, which was passed a week after the attacks of September 11, 2001, in order “to authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.”
Sixteen years is a long time—certainly longer than the sixty days of congressional inaction contemplated by the War Powers Act. But what is more striking than the time span of the A.U.M.F. is the geographic breadth. The resolution refers to organizations, people, or nations that planned the 9/11 attacks or those that “harbored such organizations or persons”—in other words, Al Qaeda and its Afghan host, the Taliban. (There was a separate A.U.M.F., in 2002, authorizing action against the government of Saddam Hussein.) Under the Administrations of George W. Bush and Barack Obama, the “harbored” clause was expanded and hardened into an assumption that the A.U.M.F. covered “associated forces.” The Obama Administration considered isis an associated force, even though it was, often enough, one of Al Qaeda’s rivals. And Assad, for all his crimes, is in a power struggle with isis. (He is not even an adherent of the same branch of Islam as Al Qaeda.) The A.U.M.F. does not authorize going after every “Gas Killing Animal”—just those connected to 9/11.
But, one might ask, isn’t the main issue that Assad is a killer, and that children are dying in Douma? Shouldn’t Trump use every tool he has at hand? Obama failed to, and look at Syria now, the argument goes. The answer is that, if there is a good case for war—particularly for a conflict that involves the President telling another nuclear power to “get ready”—then it should be one that can be made to and in Congress. It ought to be debated and voted on by people who are supposed to be representing the public. Wars without a political consensus behind them have a tendency to prove disastrous. But Congress has embraced its exclusion. It is often said, as Trump did in a recent tweet, that, in 2013, Obama backed away from a military attack on Syria following an earlier chemical attack. What Obama actually did was announce that he would first ask Congress to authorize such a strike, rather than launch it unilaterally. Congress would not. Maybe Obama knew it wouldn’t. But the idea that, in our country’s political imagination, asking Congress to do its job is seen as the equivalent of doing nothing is damning—above all, of Congress.
Wars can be disastrous in many circumstances, of course, such as when they are presented to the public as easy—a “cakewalk,” maybe—fought with weapons that are “smart.” In that sense, the most disturbing word in Trump’s tweet on Wednesday morning may be “nice,” which he used to describe bombs that are designed and built to kill people. It suggested that, at a crucial moment, he may be indifferent to the not-nice nature of war. In a second tweet, Trump mused about improving relations with Russia (“Stop the arms race?”); in a third, he seemed to give up trying to figure it all out, blaming his political enemies: “Much of the bad blood with Russia is caused by the Fake & Corrupt Russia Investigation, headed up by the all Democrat loyalists, or people that worked for Obama.” He added that Robert Mueller, the special counsel looking into possible Russian interference in the 2016 Presidential election, “is most conflicted of all (except Rosenstein who signed fisa & Comey letter). No Collusion, so they go crazy!” How far is Trump from deciding, at least in his own mind, that Mueller, Deputy Attorney General Rod Rosenstein (who also reportedly signed off on a raid of the office of Michael Cohen, Trump’s lawyer), and the former F.B.I. director James Comey (whom Trump fired) also constitute an “associated force”? On Monday, he called the Cohen raid “an attack on our country, in a true sense.”
Politicians can come up with still more rationales for Presidential wars, in part through the interaction of Article II and the A.U.M.F. If American troops are in a country because of an Al Qaeda-associated force, and then, as a result, are vulnerable to a third-party, non-associated force, can the President, in his role as Commander-in-Chief, act to protect those soldiers by engaging with that force, too? What about countries or organizations, or even foreign individuals, that are just making operations more difficult, practically or politically? Just because you can draw dotted lines connecting military actions does not make those actions constitutional, or sensible. Syria is especially prone to such confusion, given the number of players. Turkey is our ally but is unhappy about the role of Kurdish forces fighting against isis; as my colleague Robin Wright notes, Israel is also being drawn in. The complexity is not, in itself, an argument against acting. But the near-free-for-all on the ground makes it all the more important for the legal basis of military action to be clearly defined. If the current reading of the A.U.M.F. means that Trump is legally empowered to go to war with Russia (which has forces on the ground in Syria) or to invade Iran (which has supported Assad), then there is something wrong with the current reading of the A.U.M.F.—or, more fundamentally, with the A.U.M.F. itself.
It is well past time for Congress to if not repeal then to seriously revise the A.U.M.F.—to bring some clarity to the question of who gets to declare war. Last fall, Senators Rand Paul, a Republican of Kentucky, and Tim Kaine, a Democrat of Virginia, along with Representatives Barbara Lee, a Democrat of California (the only member of Congress to vote against the A.U.M.F. in 2001), and Scott Taylor, a Republican of Virginia, tried to get a bill through Congress to do just that. It failed, according to reports at the time, in part because of the efforts of Senate Majority Leader Mitch McConnell and Speaker of the House Paul Ryan. As it happened, on Wednesday morning, not long after Trump’s first tweet about Syria, Ryan announced that he would not be seeking reëlection. In his remarks, he thanked the President for making it possible for him to have done great things during his tenure. He didn’t say whether he thought that a war, waged on Trump’s authority and on his terms, might also be nice.
Amy Davidson Sorkin, a New Yorker staff writer, is a regular contributor to Comment for the magazine and writes a Web column, in which she covers war, sports, and everything in between.Read more »
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